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1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 2 MICHAEL C. DOLVIN, 3 Petitioner-Appellant, 4 v. No. 34,798
5 MICHAEL M. RUECKHAUS and THE 6 NEW MEXICO MEDICAL REVIEW 7 COMMISSION,
8 Respondents-Appellees.
9 APPEAL FROM THE DISTRICT COURT OF OTERO COUNTY 10 James Waylon Counts, District Judge
11 Michael C. Dolvin 12 Alamogordo, NM
13 Pro Se Appellant
14 Gallagher, Casados & Mann, P.C. 15 Harriett J. Hickman 16 Albuquerque, NM
17 for Appellees 18 MEMORANDUM OPINION 19 SUTIN, Judge.
1 {1} Plaintiff appeals from the district court’s dismissal of his petition for writ of 2 certiorari; Plaintiff asked the district court to order the Medical Review Commission 3 (the Commission) to allow him to represent himself on a pro se basis before the 4 Commission. We issued a notice of proposed disposition proposing to affirm. In 5 response, the following documents have been filed: a memorandum in opposition and 6 a motion to amend the docketing statement by Plaintiff; a response indicating 7 Defendants have no objection to the proposed disposition and a response opposing 8 Plaintiff’s request to amend his docketing statement by Defendants; and a motion to 9 strike, request for sanctions, and formal objection by Plaintiff, objecting to 10 Defendants’ response opposing the motion to amend. After carefully considering all 11 of the discussion contained in Plaintiff’s various pleadings, we remain convinced that 12 summary affirmance is appropriate in this case. In addition, we deny Plaintiff’s 13 motions, as discussed in this opinion. 14 {2} Plaintiff’s Motion to Amend the Docketing Statement and Motion to Strike 15 Defendants’ Response Thereto: The motion to amend the docketing statement 16 duplicates arguments made elsewhere in Plaintiff’s appellate pleadings, either in his 17 docketing statement or in his memorandum in opposition. We have considered all of 18 those arguments in arriving at our disposition in this case. Therefore, we deny the 19 motion to amend the docketing statement as an unnecessary and duplicative pleading.
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1 {3} As for the motion to strike and request for sanctions, we note the following. 2 Defendants filed a two-page response (excluding the signature page) opposing the 3 motion to amend the docketing statement, arguing in essence that amending the 4 docketing statement would be futile because it would not change the outcome of this 5 appeal. Plaintiff then filed an eighteen-page motion (excluding the signature page) 6 accusing opposing counsel of engaging in fraud and of acting unethically and 7 requesting that this Court impose sanctions. Plaintiff contends that Defendants’ 8 response is in reality a second memorandum supporting the proposed disposition 9 contained in our notice, and this is apparently the basis for Plaintiff’s outrage. We 10 disagree. Defendants’ response is a straightforward and brief reiteration of the reasons 11 why Plaintiff’s appeal is without merit and why allowing amendment of the docketing 12 statement would therefore be futile. We deny Plaintiff’s motion in its entirety and 13 caution Plaintiff to refrain from engaging in the type of hyperbole exhibited by the 14 motion—accusations of fraud and unethical behavior are not appropriate simply 15 because Plaintiff believes that a Rule of Appellate Procedure has been violated. This 16 is especially true where, as here, Plaintiff’s belief is unfounded. 17 {4} Merits: We made two main points in our notice of proposed summary 18 disposition: first, we proposed to agree that pro se litigants must be provided some 19 mechanism by which they may bring a medical-malpractice lawsuit; second, we
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1 proposed to hold that we need not decide in this case what mechanism would be 2 appropriate, because Plaintiff has not established his standing to bring a medical- 3 malpractice claim on behalf of his deceased mother. In response, Plaintiff has filed a 4 lengthy memorandum in opposition raising a number of arguments. While we need 5 not address each argument individually, we are compelled to comment on some of the 6 assertions made by Plaintiff. 7 {5} We note first that on pages 6 and 7 of the memorandum, Plaintiff accuses the 8 district court of acting out of malicious motives and of intentionally sabotaging 9 Plaintiff’s case. The basis of these accusations is Plaintiff’s contention that the district 10 court took an “outrageously” long time, four months, to rule on Plaintiff’s motion for 11 reconsideration. [MIO 6-7] We caution Plaintiff, as we did with respect to his motion 12 to strike, to refrain from these types of baseless accusations in his pleadings. Contrary 13 to his assertion, four months is not an “outrageously” long time for a district court to 14 rule on a party’s motion; in fact, it is extremely common for a motion to wait that 15 long, or longer, for a decision. This is because the district courts are underfunded and 16 overworked and have many more cases waiting for decisions other than Plaintiff’s. 17 The mere fact that Plaintiff desired a quick ruling on his motion does not mean that 18 that motion takes top priority with the district court, which has trials to conduct, 19 hearings to hold, and decisions to make in many, many other cases. Plaintiff’s baseless
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1 accusations of malice and intentional sabotage are unwarranted and in fact, should 2 they continue, could very well subject him to sanctions. 3 {6} In addition, although Plaintiff contends the district court’s delay harmed him, 4 we have already rejected that contention in the notice of proposed summary 5 disposition. As we pointed out there, by filing his notice of appeal, Plaintiff deprived 6 the district court of jurisdiction to rule on his motion for reconsideration, which was 7 filed more than thirty days after the district court order Plaintiff was challenging. The 8 district court’s ruling on the motion, therefore, is of no effect, and Plaintiff suffered 9 no harm from the district court’s allegedly “outrageous” delay. We recognize that 10 Plaintiff does not agree with our analysis and contends that he did not deprive the 11 district court of jurisdiction by filing his notice of appeal. However, we have reviewed 12 Plaintiff’s arguments and do not agree with them. Our analysis in the notice was 13 correct: Plaintiff’s successive motion for reconsideration, filed more than thirty days 14 after the district court’s order of October 23, 2014 denying the petition for writ of 15 certiorari, did not render the notice of appeal ineffective; therefore, the notice deprived 16 the district court of jurisdiction to act on the motion for reconsideration. 17 {7} Plaintiff’s memorandum in opposition also contains a lengthy discussion of the 18 question of a pro se litigant’s right to represent himself in a medical-malpractice case, 19 as well as Plaintiff’s right to appear in front of the Commission as a pro se litigant.
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1 [MIO 7-16] As we pointed out in the notice of proposed summary disposition, 2 however, we need not address that question in this case, because Plaintiff did not have 3 standing to represent his deceased mother’s estate in a medical-malpractice action in 4 any forum. Plaintiff argues vigorously that this Court should address the question 5 because pro se litigants in New Mexico need guidance for future cases. Given 6 Plaintiff’s lack of standing, even if we did decide that a pro se litigant can represent 7 himself before the Commission, or alternatively that a pro se litigant may bypass the 8 Commission and proceed directly to district court, that decision would be of no use 9 to Plaintiff in this appeal. In effect, therefore, it would be no more than an advisory 10 opinion that would have no impact on the parties in this particular case, and this Court 11 does not issue advisory opinions. See Insure N.M., LLC v. McGonigle, 2000-NMCA- 12 018, ¶ 27, 128 N.M. 611, 995 P.2d 1053. Resolution of the question of a self- 13 represented individual’s ability to maintain a medical-malpractice action must wait for 14 a case in which that resolution will make a practical difference to the parties in that 15 case. 16 {8} Plaintiff next addresses the standing issue that was the basis for our proposed 17 affirmance in the notice. [MIO 16-21] He first argues that the Commission, rather than 18 immediately informing him that it would not consider his submission, held onto it for 19 a year. [MIO 17-19] He does not explain, however, how this fact has any impact on
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1 the standing question. The bottom line is, Plaintiff has never been appointed personal 2 representative of his mother’s estate, and in our notice we cited case law indicating 3 that a medical-malpractice action brought on behalf of a deceased individual must be 4 brought by a personal representative of the deceased individual’s estate. Mackey v. 5 Burke, 1984-NMCA-028, ¶ 7, 102 N.M. 294, 694 P.2d 1359, overruled on other 6 grounds by Chavez v. Regents of Univ. of N.M., 1985-NMSC-114, ¶¶ 5, 20, 103 N.M. 7 606, 711 P.2d 883. The fact that the Commission did not inform Plaintiff of this 8 problem for some period of time does not somehow confer personal-representative 9 standing upon Plaintiff. 10 {9} Plaintiff also argues that his case had merit because a pro se litigant has a right 11 to appear pro se before the Commission. [MIO 19] Assuming that is true, a question 12 we decline to decide in this case, the right would only apply if Plaintiff was presenting 13 a medical-malpractice claim on behalf of himself, not on behalf of another individual 14 or, as in this case, his mother’s estate. This argument therefore has no effect on the 15 standing question. 16 {10} Plaintiff contends that dismissal of his petition should not be affirmed because 17 this Court has forgiven a flawed procedure in a prior case, Chisholm v. Rueckhaus, 18 1997-NMCA-112, 124 N.M. 255, 948 P.2d 707. Plaintiff requests similar relief in this 19 appeal. [MIO 20] In Chisholm, in order to protect a minor child’s interests, we
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1 remanded the case so the district court could appoint an attorney or a guardian ad 2 litem to pursue a malpractice action on behalf of the minor child. 1997-NMCA-112, 3 ¶¶ 12-14. The basis of that action was New Mexico courts’ strong interest in 4 protecting the rights of minor children, an interest that is not present in this case. We 5 therefore decline Plaintiff’s request to be treated in the same manner as the minor 6 child was treated in Chisholm. 7 {11} Plaintiff next appears to maintain that this case involves not only the estate’s 8 potential interest in the medical-malpractice action, but his own rights as well. [MIO 9 20] He in effect claims that his petition for writ of certiorari should not have been 10 denied because he should have been allowed to litigate his own interests. However, 11 both below and on appeal the gravamen of Plaintiff’s action was to pursue a medical- 12 malpractice case as a result of allegedly deficient medical treatment provided to 13 Plaintiff’s mother, not to Plaintiff himself. The rights that have been allegedly denied 14 to Plaintiff all concern the question of whether he will be able to pursue that medical- 15 malpractice claim on a pro se basis. As we have discussed in the notice and in this 16 opinion, if Plaintiff had been pursuing a claim for medical malpractice committed 17 against him personally, his right to do so would need to be recognized. However, that 18 is not the situation here and any “rights” Plaintiff is attempting to assert are derivative
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1 of the medical-malpractice action that he does not have standing to pursue. For that 2 reason, we reject this argument. 3 {12} Plaintiff points out that he presented evidence of his special relationship with 4 his mother to the district court, including the fact that he was her legal representative 5 for medical purposes when she was hospitalized and that he was her only child. [MIO 6 20] As we pointed out in the notice, the key issue is not what type of relationship 7 Plaintiff had with his mother or whether he is her sole heir; instead, the applicable law 8 requires that an action such as this be pursued by the duly appointed personal 9 representative of the deceased individual’s estate. Mackey, 1984-NMCA-028, ¶ 7. 10 Unless and until Plaintiff satisfies that prerequisite by obtaining appointment as 11 personal representative of the estate, he will not have standing to pursue a medical- 12 malpractice action on behalf of his deceased mother. 13 {13} Plaintiff complains of several actions by this Court that allegedly have “grossly 14 violated” his “civil and constitutional rights,” such as considering only one docketing 15 statement that Plaintiff contends he was forced to file prematurely. [MIO 21] We do 16 not agree with Plaintiff’s complaints. We have reviewed several pleadings filed by 17 Plaintiff and have thereby obtained a complete picture of his legal and factual 18 arguments. Thus, he has had a full and fair opportunity to present those arguments, 19 and in fact has had more of an opportunity to do so than does the typical appellant,
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1 who does not file the same number of motions and other pleadings as Plaintiff has 2 filed in this case. Contrary to Plaintiff’s assertion, he has suffered no deprivation of 3 constitutional rights as a result of our handling of his appeal; we have simply ruled 4 against him. 5 {14} We take this opportunity to again point out an issue we briefly mentioned in the 6 notice of proposed summary disposition. In that notice we noted the possibility that 7 Plaintiff might be named as personal representative of his mother’s estate at some 8 point, and we expressed no opinion concerning the impact this pending case might 9 have on statute of limitations questions that might arise in any future case Plaintiff 10 might file. To that suggestion we also add the following: nothing in this opinion or in 11 our notice should be read to imply that Plaintiff, even if he were to become personal 12 representative of his mother’s estate, should be allowed to pursue a pro se medical- 13 malpractice action on behalf of that estate. As we have stated, a pro se litigant should 14 have the right to pursue such an action on behalf of himself, but that is a different 15 matter than attempting to represent an estate on a pro se basis, merely because the 16 would-be litigant has been appointed personal representative. In fact, in other 17 jurisdictions such pro se representation has been prohibited as the unauthorized 18 practice of law. See, e.g., City of Downey v. Johnson, 263 Cal. App.2d 775, 779-80 19 (1968) (citing cases). We need not decide whether that prohibition would apply in
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1 New Mexico; we merely emphasize that our discussion in this opinion and in our 2 notice should not be construed as any type of implied permission allowing a personal 3 representative to bring a pro se action for medical malpractice on behalf of an estate. 4 {15} Based on the foregoing, we affirm the district court’s denial of Plaintiff’s 5 petition for writ of certiorari. 6 {16} IT IS SO ORDERED.
7 __________________________________ 8 JONATHAN B. SUTIN, Judge
9 WE CONCUR:
10 _______________________________ 11 M. MONICA ZAMORA, Judge
12 _______________________________ 13 J. MILES HANISEE, Judge